Groome v. Fisher
| Decision Date | 14 February 1930 |
| Docket Number | 5311,5310 |
| Citation | 284 P. 1030,48 Idaho 771 |
| Parties | HENRY S. GROOME, Respondent, v. HARRY L. FISHER, Trustee, et al., Appellants, and ED. N. SCOTT, Respondent. CHESTER W. GROOME, Respondent, v. HARRY L. FISHER, Trustee, et al., Appellants, and ED. N. SCOTT, Respondent |
| Court | Idaho Supreme Court |
PRINCIPAL AND AGENT-CONTRACT OF EMPLOYMENT-LIABILITY OF PRINCIPAL-BURDEN OF PROOF-TRUST AGREEMENT-SECONDARY EVIDENCE - COMPETENCY - MINES - STATUTORY NOTICE OF EMPLOYER MADE BY AGENT-SUFFICIENCY OF-APPEAL AND ERROR-EFFECT OF NONAPPEAL.
1. Burden of proof is on one urging liability of a principal on contract of employment by a principal through an agent.
2. Respondents eliciting secondary evidence as to trust agreement were bound by it.
3. Notice posted at mine, under C. S., secs. 2311-2313, stating that F., as trustee for defendant, was employer was not sufficient to bind defendants without knowledge thereof since it was merely a statement by agent.
4. Evidence showing that cestuis que trust only contributed to purchase of property, and that, if there were any profits they were to receive them, but under agreement cestuis que trust were not to put up any more money, and were not to be responsible for expenses connected with mining property, held not to show that one employing plaintiffs was mining partner as trustee with authority to bind any of cestuis que trust.
5. Where no appeal was taken from judgment against one of defendants, judgment against him stood.
APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Wm. A. Babcock, Judge.
Actions for recovery of wages due. Judgment for plaintiffs. Reversed and remanded, with instructions.
Reversed and remanded, with instructions. Costs awarded to appellants.
Fisher & Coffin, for Appellants.
Co-owners must actually engage in working a mining property before they can be held liable as mining partners under our statute. ( Madar v. Norman, 13 Idaho 585, 92 P. 572; Peterson v. Beggs, 26 Cal.App. 760, 148 P. 541; Anaconda Copper Min. Co. v. Butte & B. Min. Co., 17 Mont. 519, 43 P. 924; Hartney v. Gosling, 10 Wyo 346, 98 Am. St. 1005, 68 P. 1118; Vietti v. Nesbitt, 22 Nev. 390, 41 P. 151.)
Mining property standing in the name of a trustee, even though operated by him, does not make the beneficiaries mining partners. (Peterson v. Beggs, supra; C. S., secs. 5856, 5857.)
Cleve Groome, for Respondents.
The question as to who is employer is sometimes in dispute and involves issues of fact, and the liability in such case is for the jury to determine under proper instructions. (39 C. J., p. 45, sec. 192.)
Plaintiffs' Exhibits "C" and "D" are notices required to be published, posted and recorded by our statute by all persons who are employing labor on mining property. (C. S., secs. 2311--2313.)
Where one accepts the benefit of labor performed without objection and pays part of the wages, he is liable for the reasonable value of the remainder of the labor. (Quirk v. Sunderlin, 23 Idaho 368, 130 P. 374; Connellee v. Nees, (Tex. Civ. App.) 254 S.W. 625; Sowash v. Emerson, 32 Cal.App. 13, 161 P. 1018; Hirschman v. Kuechle, 95 Misc. 243, 158 N.Y.S. 734; Batcheller v. Whittier, 12 Cal.App. 262, 107 P. 141; 40 Cyc. 2808; Stuart v. Adams, 89 Cal. 367, 26 P. 970.)
A trustee may operate a mine for himself and the other cestui as in the case of any other legitimate business and in such instances the cestui qui trust and the trustee are proper parties defendant. (39 Cyc. 453, 456, 613, 614; 26 R. C. L. 1343, sec. 208; Cunningham v. Bank of Nampa, 13 Idaho 167, 121 Am. St. 257, 88 P. 975, 10 L. R. A., N. S., 706; 5 C. J. 1349, 1350, secs. 55, 56; Kerrison v. Stewart, 93 U.S. (3 Otto) 155, 23 L.Ed. 843; Connellee v. Nees, supra.)
One does not have to do the actual labor in a mining enterprise to be engaged in mining. He may supply the money, machinery, clerical assistance or executive work and yet be engaged in the mining enterprise as effectively as though he were actually doing manual labor. (Harper v. Sloan, 177 Cal. 174, 169 P. 1043--1046, 181 P. 775.)
Two separate actions were commenced, one by Henry S. Groome, the other by Chester W. Groome, against all of the appellants. The pleadings and the proof were, so far as material herein, identical in both actions and both actions were consolidated for trial and on appeal. The material allegations of the complaints were that appellant Fisher holds the title and lease of certain mining claims as trustee for the use and benefit of the other appellants; that respondents performed work and labor for the defendants for which they have not been paid, and demanded their wages, and under the statute, because they were dismissed from employment without being paid, attorney's fees.
Appellants by their answers admitted the above except they claimed the work and labor were performed, not for appellants, but for Ed. N. Scott alone. Respondents contend that appellants were mining partners. Appellants contend that they were cotenants only and that the appellants, other than Ed. N. Scott, had nothing to do with the employment or hiring of respondents.
The evidence discloses that the appellants other than Fisher each had contributed a certain, though different, amount of money for the purchase of the mining claims in question; that the respondents prior to their employment talked not only with Scott but with Fisher with regard to their employment; that during these conversations Fisher used the word "we" with reference to who was going to do the work on the claims; that the bullion was sent from the mine to appellant Fisher, who secured the money thereon from the assay office; that the checks given to respondents were signed by Harry L. Fisher as trustee; that after they had been discharged, according to respondents, Fisher offered to give them a mortgage upon the mining property for their unpaid wages; that none of the appellants, other than Fisher and Scott, knew that the work in which respondents were engaged was being done or had anything to do with it in any way, or ever saw or knew of the notice posted at the mine, or knew of or ratified the participation in the work by Fisher as their trustee, or contributed to the expense thereof.
C. S., secs. 2311, 2312 and 2313, require, under penalty for noncompliance, that a notice be posted at mines showing who are the employers and who are prosecuting the work being done. The notice herein posted stated that Fisher as trustee for appellants was the employer.
Conceding that there was sufficient evidence to justify the conclusion that appellant Fisher was a mining partner of Ed. N. Scott, the man who was actually on the ground and carrying on the physical labor of getting out the ore, etc. ( Butler v. Hinckley, 17 Colo. 523, 30 P. 250; Harper v. Sloan, 177 Cal. 174, 169 P. 1043, 181 P. 775), the evidence does not prove that appellants other than Fisher and Scott were in any way "actually engaged in the development and operation of the mine in the ordinary course of mining" so as to make them direct partners in the mining operations. (Conwell v. Village of Culdesac, 13 Idaho 575, 92 P. 535; Stevens v. McKibbin, 68 F. 406, 15 C. C. A. 498; Peterson v. Beggs, 26 Cal.App. 760, 148 P. 541; Dodge v. Chambers, 43 Colo. 366, 96 P. 178; Vietti v. Nesbitt, 22 Nev. 390, 41 P. 151; Anderson v. Keystone Supply Co., 93 Okla. 224, 220 P. 605; Gillespie v. Shufflin, 91 Okla. 72, 216 P. 132; Mattocks v. Gibbons, 94 Wash. 44, 162 P. 19; Hartney v. Gosling, 10 Wyo. 346, 98 Am. St. 1005, 68 P. 1118; 40 C. J. 1145; 18 R. C. L., pp. 1200, 1201; 17 Cal. Jur., pp. 437, 441.) If partners at all, they were such because of their connection through Fisher as their trustee, agent or representative.
The burden of proof is upon one urging liability of a principal on a contract of employment by a principal through an agent. (Chamberlain v. Amalgamated Sugar Co., 42 Idaho 604, 247 P. 12; Whalen v. Vallier, 46...
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